UPENDRA UPADHAYAYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD the learned counsel for the revisionist and the State.

(2.) THE prosecution case in short is that there was a joint kathal. tree and on the date of occurrence the revisionist plucking fruits when the informant side resisted it that cause injuries to them then FIR was lodged and the trial Court charged the accused persons for an offence under Section 147, 323, 341 and 379 of the Indian Penal Code but convicted the accused persons only under Sections 147, 323 and 341 of the IPC and under Section 248(2) of the Cr PC. The trial Court convicted them for offence under Section 147, 3 months R.I. for an offence under Section 323 R.I. for three months for an offence under Section 341 of the IPC, SI for fifteen days and the trial Court directed that all these punishments shall commence after the expiry of other as provided under Section 31 of the Cr PC. Against that order an appeal was preferred in the Sessions Court and by the appellate judgment in Cr Appeal No. 1/94/5/95 the conviction was upheld and sentence was modified to the extent that these both sentences shall run concurrently While awarding the sentence the learned appellate Court rejected the prayer for giving the benefit of Section 360 of the Cr PC. on the ground that in view of Section 19 of the Probation of Offenders Act this provision is not applicable in the State of Bihar and consequently it held that the trial Court rightly did not grant the benefit of Section 360 of the Cr PC, Section 19 of the Probation of Offenders Act reads as follows ; ''

(3.) THERE is nothing on the record to show that the revisionist were also convicted earlier, so considering the nature of the case when the admitted position is that both parties were at a liberty to pluck jackal fruits according to their own needs I do not think that the learned trial Court or appellant Court should have refused to extend the benefit of Probation of Offender Act.